Monday, November 30, 2009

Supreme Court set to rule on resignation of government officials before filing COCs

(The Philippine Star)
Updated December 01, 2009 12:00 AM

MANILA, Philippines - It will be known today whether appointive officials running in next year’s elections must resign before filing their certificates of candidacy.

The Supreme Court is set to rule on the matter today, according to SC spokesman Midas Marquez.

Lawyer Romulo Macalintal has asked the SC to stop the implementation of a Commission on Elections (Comelec) resolution stating that appointive officials are considered resigned upon filing of their COCs.

Macalintal said he has advised his clients, Undersecretary Eleazar Quinto and Director Gerino Tolentino of the Department of Environment and Natural Resources, and other appointive officials to file their COCs after 5 p.m. when the SC has already ruled on the matter.

“With the recent SC decision in the Penera case, which ruled that persons filing COCs are not yet considered candidates (under poll automation system), with more reason that the SC may consider my petition that government officials filing COCs should be ipso facto resigned only at the start of campaign period and not upon filing of COCs,” he said.

Macalintal said should the SC rule in his favor, appointive officials who have already resigned no longer need to be reappointed.

“There is no need for reappointment because they don’t even have to submit a written letter of resignation as they are ipso facto resigned upon filing of COCs,” he said. “So if the SC decides favorably, it will retroact to them in that it is as if there’s no such law or resolution of Comelec, so no ipso facto resignation.”

Last Oct. 19, Macalintal told the SC the advance filing of COCs was only provided under the Poll Automation Law for the purpose of printing the names of the candidates in the ballots.

“It is respectfully submitted that the better rule is to consider such person, including the petitioners herein who will file their COCs on or before Nov. 30, 2009 (which was moved to Dec. 1), to be ‘ipso facto resigned’ only upon the start of the campaign period for which they file their respective certificates of candidacy,” read Macalintal’s petition.

Macalintal said the Poll Automation Law’s provision on mandatory resignation of appointive officials upon filing of COCs was contradictory as it also provides that any person who files his COC shall only be considered as a candidate at the start of the campaign period.

“The law is very clear in that the persons filing in advance their COCs are not yet considered as ‘candidate’ as of Nov. 30 but will only be considered as such upon the start of the campaign period for which they filed their COCs,” he said.

“These two conflicting provisions of the same law should have been reconciled or harmonized by the respondent Comelec to suit the apparent content of legislators that the ‘ipso facto resignation’ of the said government official who files his COC should only take effect upon start of the campaign period for which he filed his certificate of candidate,” he said.

Macalintal said the questioned provision showed apparent discrimination and violation of the equal protection clause of the Constitution on grounds that elective officials are not considered resigned if they file their COCs on Nov. 30 and could hold on to their positions after the elections.

“Furthermore, the resolution was based merely on the Omnibus Election Code which applies to a manual election without considering the fact that the 2010 elections shall be automated and covered by the Automated Election Law,” he said.

Petitioners asked the SC to void the assailed provision in the Comelec resolution passed last Oct. 6.

In response, the Office of the Solicitor General said petitioners raised a valid controversy that warrants issuance of a temporary restraining order.

“Verily, there is now a compelling need for the Honorable Court to step in and resolve the controversy for the benefit not only of the petitioners and those similarly situated, but for the Comelec as well,” read the OSG’s comment.

“It is true that the first and fundamental duty of courts is to apply the law. However, when application becomes impossible or inadequate, as in this case, the Honorable Court should not deny the parties the exercise of its powers of construction and interpretation.

“In this connection, the implementation of Section 4 (a) of Comelec Resolution 8678 which only mirrors Section 13 of RA 9369 (Poll Automation Law) should accordingly be restrained”.

State lawyers agreed with Macalintal’s argument that the Poll Automation Law contains conflicting provisions.

“All told, it is respectfully submitted that the provision in Section 15 of RA 8436, as amended by RA 9369, stating that appointive officials, active members of the Armed Forces and officers and employees of GOCCs (government-owned and controlled corporations) are considered ipso facto (it follows) resigned and required to vacate their positions on the same day they filed their COCs is contrary to the spirit behind the provision of the same law stating that any person who filed his COC shall be considered a candidate at the start of the campaign period.” – Edu Punay


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